Death penalty : A question of inquest and introspection

The death sentence awarded to Yakub Memon, the only terrorist accused in 1993 blasts to get death row amongst others, once again ignited the much debated topic of discussion among the jurists, judges, lawyers’ i.e. “whether death sentence should be retained where the edifice of criminal jurisprudence in 21st century is reformation and rehabilitation of criminal”.

The only justification that had been advanced for the retention of death sentence in India had been ‘Deterrence’[1]. In 1967 Law Commission in its 35th report on Death penalty stated, “Having regard to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.

In August 2015, Law Commission of India presented its Report No. 262 on “Death Penalty” stated therein in Chapter no. 7 on p.213 that “the death penalty doesn’t serve the penological goal of deterrence anymore than life imprisonment. Further, life imprisonment under Indian law means imprisonment for whole of life subject to just remissions which, in many states in case of serious crimes, are granted only after many years of imprisonment which ranges from 30-60 years. Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance” it further favoured abolition of death penalty EXCEPT in the cases of TERRORISM and SEDITION.

Tracing back the history from where deterrent was the benchmark to ratify the criminal, jurists stated, “Punishment dissuades a person from future wrong doing by making punishment severe enough so that the benefit or pleasure derived from the offence is outweighed by the pain and probably of punishment”[2]. Thus, the aim was to make it so severe that it acts as a deterrent for the others. The principle was propounded by Jermy Bentham on the tenet of Hedonism, also popularly known as the principle of pain and pleasure. With the times changing, the critiques of the theory paved way for theories like Retribution also called “Just Deserts” another term for “eye for an eye”.

Deterrence and retribution failed to smoothen the rate of crime, which had no impact on the criminals.  Under Indian jurisprudence, the Apex court lucidly elaborated the object of punishment in Ram Narian’s case[3] as, “para 8 …the broad object of punishment of an accused found guilty in progressive civilized societies is to impress on the guilty party that commission of crimes does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient....”

In 2014 a landmark judgment[4] came which emphasised on the rights of the prisoners even if they are convicted under TADA, stating, “Para 264: Remember, retribution has no Constitutional value in our largest democratic country. In India, even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same. Therefore, we make it clear that when the judiciary interferes in such matters, it does not really interfere with the power exercised under Article 72/161 but only to uphold the de facto protection provided by the Constitution to every convict including death convicts.”

In V. Sriharan v. Union of India[5], the Court once again invoked this strand of death jurisprudence to commute death sentence of all the three convicts of Rajiv Gandhi Assassination case. Likewise in Davinder Pal Singh Bhullars[6] case similar tenets were reiterated.

One of the main reasons for this transformation in the criminal jurisprudence in India can be tracked down in the theories coined by renowned and celebrated jurists like Cesare Lombroso, Raffaele Garafalo, William, Healy etc. Cesare Lombroso, a very famous physiatrist and also known to be the originator of modern criminology, adopted an non-doctrinal methodology of study of criminals to come to a conclusion that criminality has to do with the physical characteristics of a man and it is the deformity in the growth of man that make him commit inferior acts. Raffaele Garafalo, on the other hand pointed out that it is the circumstances and the living conditions of a man that makes him vulnerable to commit crime. Further, according to William, Healay, multiple factors come together to make a man a criminal. He pointed out mobility, cultural conflicts, family background, political ideology, religion, economic conditions, ecology, influence of media as some of the factors that come together to make a man a criminal. The most potent example is the Apex court in India making poverty a mitigating factor in commutation of death into life imprisonment.[7]  It is vital to mention here that there had been criminologists who stated that the instinct of committing crime can be hereditary i.e. a child born in a family of criminals is likely to be a criminal. Thus, there had been numerous theories pointing out the possible reasons of commission of crime and understanding the reasons thereof in order to ratify the instinct of commission of crime in the criminal.

It was the result of these theories and many others that the focus has been drifted and shifted from CRIME to CRIMINAL and that what make them commit the crime? In the light of all said, it is important to understand the relationship between Criminology, Penology and Criminal law.

Criminology is that branch of law that lays down its focus on the possible reason of commissions of crime both biological and sociological and penology emphasises on treatment, correction and future prevention of crime.  It is further important to state that a new branch of criminology has also emerged in recent times known as Victimology. Thus, where criminology helps study and investigates the cause of commission of crime and the impact of surroundings on a criminal, penology focuses on the prevention of commission of the crime by treating the criminal. In other words it can be said that criminology is a key to penology and in the era of 21st century both are indispensable part of each other as no crime can be prevented without understanding the criminal and the circumstances that led him to the path of being a criminal.

Recent times have seen a monumental drift in the judicial trend and the changing focus from the CRIME to CRIMINAL. The doors of the institution had been knocked number of times to decide upon an evolving jurisprudence which India has to its credit for being at the forefront of the global legal arena. Mercy jurisprudence too has developed as an evolving standard of decency, which is hallmark of the society.  From evolving the principle of “Rarest of Rare” in Bachan Singh v. State of Punjab [8] to sprouting and exploring the ever new list of the mitigating factors for commutation of death sentence into life imprisonment in the judicial parlance is a laudable effort and needs an applaud. Expanding the horizon of Article 21 of Constitution of India by giving it a wide interpretation for any civilized society, there can be no attributes more important than the life and personal liberty of a human. This is evident from the paramount position given by the courts to Article 21 of The Constitution of India. The twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently the legislature, the executive and the judiciary are more sensitive to them than to the other attributes of daily existence.

In Mahesh Dhanaji Shinde v. State of Maharastra[9], the expanse of the death penalty jurisprudence which was clearly and firmly laid down in Bachan Singh,[10]  was summarized by culling out the following which appear to be core principles emerging therefrom.

1. Life imprisonment is the rule and death penalty an exception
2. Death sentence must be imposed only in gravest cases of extreme culpability, namely in “rarest of rare” where the alternative option of life imprisonment is “unquestionably foreclosed”
3. The sentence is the question of judicial discretion to be exercised by giving due consideration to the circumstances of the crime as well as the offender.

However as the fallibility of human judgement is undeniable even in the most trained minds, a mind resourced by the harvest of experience, it has been considered appropriate that in the matter of life and liberty, the protection must be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty. The power so entrusted is the power of people and reposed in the highest dignitary of the state, i.e. in India the President/Governor under Article 72/161 of The Constitution of India.

In the case of Shatrughan Chauhan v. Union of India [11] The court in detail explained the power vested in The President/ The Governor under Article 72/161 of The Constitution of India. Para 12 : “Both Articles 72 and 161 repose power of the people in highest dignitaries i.e. the president or the Governor of the State , as the case may be, and there are no words of limitation indicated in either of the two Articles. The President or The Governor as the case may be, in exercise of the power bestowed on them by the Constitution, may examine the evidences afresh and this exercise of power is clearly independent of the judiciary. The Court, in numerous instances, clarified that the executive is not sitting as a court of appeal rather the power of President/Governor to grant remission of sentence is an act of grace and humanity in appropriate cases i.e. distinct, absolute and unfettered in its nature.” It further held that the power is subject to a limited judicial review as also been held in Epuru Sudhakar v. Govt of Andhra Pradesh[12] , Narayan Dutt v. State of Punjab[13], Maru Ram v. Union of India.  Following have been held to be the grounds:

1. That the order has been passed without application of mind;
2. That the order is mala fide;
3. That the order has been passed on extraneous or wholly irrelevant consideration;
4. That relevant materials have been kept out of considerations;
5. That the order suffers from arbitrariness.

In the most recent judgement titled as Shabnam v. Union of India [14]  the Court while upholding the superiority of right to life to any other right held that a death row convicts cannot be hanged before they exhaust their right to review by Supreme Court and right to file mercy petition. It further held that a condemned prisoner also have a right to dignity and execution of death sentence cannot be carried out in an arbitrary, hurried and secretive manner without allowing the convicts to exhaust all legal remedies.

In Mohd. Arif @Ashfaq v. Registrar, Supreme Court of India,[15] the Constitutional Bench stated “Para 31…. We are of the opinion that “reasonable procedure” would encompass oral herein of the review petitions arising out of death penalties. The statement of Justice Holmes that the Life of law is not logic, it is an experience, aptly applies here.

Para 32… Death penalty is irreversible in nature. Once a death sentence is executed, that results in taking away the life of the convict. If it is found thereafter that such a sentence was not warranted, that would be of no use as the life of that person cannot be brought back. This being so, we feel that if the fundamental right to life is involved, any procedure to be just and reasonable should take into account the two factors mentioned above. This being so, we feel that a limited oral hearing even at the review stage is mandated by Article 21 in all death sentence cases.” Therefore, right to review is a valuable right given to convicts who are imposed death penalty.

Right of life is the most fundamental foundation of our legal procedures in absence f which procedure would be rendered utra vires. This right is irrespective of the nature of crime committed. In 2014, a landmark judgement Satrughan Chauhan v. Union Of India[16] came in which court went to an extend of saying that delay in deciding mercy petition by the President of India is a mitigating circumstance for commutation of death sentence. It further held that this right is irrespective of the fact that the accused is a terrorist and convicted under TADA, Act.

Further, in Navneet Kaur v. State NCT of Delhi [17] it was held that

1. There is no rationality in distinguishing between the offence of IPC and TADA.
2. Insanity/ mental illness/schizophrenia is also one of the supervening circumstances for commutation of death into life imprisonment

Not only this, the right to dignified death is further ensured by laying down a procedure that is a mandate to be followed. Since In the conditions that prevail in India, death penalty can certainly be not done away with, every effort has been made that no disharmony is created with the right of life which have been interpreted to die with dignity.

In Peoples’ Union for Democratic Rights (PUDR) v. Union of India,[18] the High Court laid down the safeguards to be observed while undertaking the procedure of execution of death sentence

1. Firstly, the principles of natural justice must be read into the provisions of Section 413 and 414 of Cr.P.C. and sufficient notice ought to be given to the convict before the issuance of a warrant of death by the session’s court that would enable the convict to consult his advocates and to be represented in the proceedings.
2. Secondly, the warrants must specify the exact date and time for execution and not a range of dates which places a prisoner in a state of uncertainty.
3. Thirdly, a reasonable period of time must elapse between the date of the order on the execution warrant and the date fixed or appointed in the warrant for the execution so that the convict have a reasonable opportunity to pursue legal recourse against the warrant and to have a final meeting with the members of his family before the date fixed for execution
4. Fourthly, a copy of the execution warrant must be immediately supplied to the convict.
5. Fifthly, in those cases, where a convict is not in a position to offer a legal assistance, legal aid must be provided.

It further reiterated the principles laid down in Shatrughan Chauhan [19]

Here a special reference has to be made to an order passed by the Constitutional Bench in Union of India v. V. Sriharan @ Murugan & Ors,[20] which stated that the State Government has the power to grant remission to life convicts, but this right is subject to limitations. Further it was held in Para 4 that “Accordingly, we modify our order dated 09.07.2014, whereby we had restrained the State Governments from exercising power of remission or commutation to life convicts. The said order dated 09.07.2014 shall only apply to the cases:

i. Where life sentence has been awarded specifying that-

1. That convict shall undergo life sentence till the end of his life without remission or commutation;
2. The convict shall not be released by granting remission or commutation till he completes a fixed term such as 20 years or 25 years;

ii. Where no application for remission or commutation was preferred or considered suo moto by the concerned State Government.

iii. Where the investigation was not conducted by any Central Investigating Agency like Central Bureau of Investigation (CBI).

iv. Where the life sentence is under any central law or under Section 376 of Indian Penal Code, 1860 or any other similar offence.”

The reason for citing the order is just to stress on the fact that the right to life not only of a common man but also a convict has been held to be a fundamental possession that cannot be done away except with the procedure established by law. It is not only the death jurisprudence that has been developed but also the life convict jurisprudence has undergone a drastic change. Thus, it clearly reflects that the judiciary is ready and willing to accept the norms which have been set up on the  International platform for all civilized nations  but it is only the Indian conditions and the surrounding circumstances that is not allowing the legislators to done away with the death penalty completely.

it is thus summed up that human life is perhaps the most precious gift of nature and one that rightly deserves to be treated with reverence and absolute discretion. The right to life is invariably the most fundamental of all human rights since time immemorial. This is the reason why it is argued that if you cannot give life, you do not have the right to take it.

In Dharam Pal v. State of Haryana & Ors [21] commenting on the sentencing policy to be followed the Supreme Court held Crime and Punishment are the two sides of the same coin. Punishment must fit the crime. The notion ‘Just Deserts’ or a sentence proportionate to the offender’s culpability was the principle which, by passage of time, became applicable to criminal jurisprudence. In all of recorded history, there was never been a time when crime and punishment have not been subjected to debate and difference of opinion. There are no statutory guidelines to regulate the awarding of punishment in India. Further the Indian Penal Code provides only the maximum punishment for offences and in some cases minimum punishment is also provided.

In Ashok Debbarma @ Achak Debbarma v. State of Tripura [22] it was stated in Para 40, Arbitrariness, discrimination and inconsistency often loom large when we analyse some of the judicial pronouncements awarding sentence. Ofcourse it is difficult to lay down clear cut guidelines or standards to determine the appropriate sentence to be awarded. Even the ardent critics only criticize, but have no concrete solution as such for laying down a clear cut policy of sentencing. Only safeguard, statutorily and judicially provided is to give special, not merely “reasons” before awarding the capital punishment.

In Santosh Kumar Satisbhushan Bariyar v. State of Maharastra[23] the Court highlighted the fact that the arbitrariness in sentencing under Section 302 may violate the idea of equal protection clause under Article 14 and the right to life under Article 21 of Constitution of India. Many times, it may be remembered that the ultimate sentence depends on the facts and circumstances of each case.

In Mohd. Farooq Abdul Gafar and Anr v. State of Maharastra , the Supreme Court categorically stated in Para 169.. “The situation accentuated due to the inherent imperfections of the system in terms of delays, mounting cost of litigation in High courts and Apex court, legal aid and access to courts and inarticulate information on socio-economic and criminological context of crimes. In such a context, some of the leading commentators on death penalty hold the view that it is invariably the marginalized and destitute who suffers the extreme penalty ultimately”

Further in Swamy Shraddananda(2)  v. State of Karnataka , the Court noted that the awarding of sentence of death “depends a good deal on the personal predilection of the judges constituting the Bench.” This is a serious admission on the part of court.

Death penalty is ofcourse not a solution; it never was and will never be.  Where 140 nations have abolished death penalty, India is surely moving against the tide. But the fact that conditions in India are far more different from the conditions prevailing in those 140 countries that have done away with the death penalty. The scope of “Rarest of Rare” has been narrowed down to an extent that Justice T.S Thakur, Supreme Court of India held that Capital punishment can be awarded only if the crime involves terrorism, murder.[24] In a developing country like India where poverty, illiteracy, corruption, terrorism still haunts the effective governance, death penalty can never be paved way with. The most recent terrorist attack in Gurdaspur substantiates the fact that the conditions that prevail in the Nation are such that death penalty as a punishment cannot be abolished.  The transformation that took place in 21st century, where the focus shifted from crime to criminal and by the introduction of concepts like probation, parole, furlough, open jails, India has stepped a ladder ahead in its journey to abolish death penalty completely. And certainly, one should not forget, even reformative and rehabilitative techniques have failed for hardened criminals as for the people who find pleasure killing; deterrence is and shall be the only answer.

• [1] Deterrence means to prevent something from happening or to persuade someone not to do something; to discourage.

• [2] N V Pranjape,”Criminolody and Penology with Victimonlogy”, Central Law Publication (2011) p.242.

• [3] Ram Narain v. State of Uttar Pradesh (1973) 2 SCC 86.

• [4] Satrughan Chauhan v. UOI, RCR (Criminal) 741 SC.

• [5] 2014(4) SCC 242.

• [6] Navneet Kaur v. State (NCT of Delhi), Curative Petition (Criminal) No.88 of 2013 (Decided on March 31,2014).

• [7] Sunil Giakwad vs State of Maharastra 2013 SC.

• [8] 1980(2) SCC 684.

• [9] 2014(2) RCR (Criminal) 947 SC.

• [10] 1980(2) SCC 684.

• [11] 2014(1) RCR Criminal 741 SC.

• [12] 2006(4) RCR (Criminal) 616 AP High Court.

• [13] 2011(2) RCR (Criminal) 140.

• [14] 2015(3) RCR (Criminal) 1 SC.

• [15] 2014(4) RCR (Criminal) 103 SC.

• [16] RCR (Criminal) 741 SC.

• [17] 2014 (2) RCR (Criminal) 397 SC.

• [18] 2015(3) RCR (Criminal) 7 Allahabad High Court.

• [19] 2014(1) RCR (Criminal) 741 SC.

• [20] 2015(3)RCR(Criminal)875 SC.

• [21] 2015(2) RCR (Criminal) 994 P&H.

• [22] 2014 (3) RCR (Criminal) 261 SC.

• [23] 2010(2) RCR (Criminal) 221.

• [24] Capital Punishment only if crime involves terrorism,murder:SC, The Sunday Tribune, p.19, Sunday August 23 2015.